By Samuel Olufowose
On the 15th day of November 2021, in what appeared as a “Be your brother’s keeper consciousness”, The Internet broke with the rumor that Ahmed Gafar, the popular social media content creator and comedian, Cute Abiola, was nowhere to be found with indications that he was hanging in the ‘tyrannical net’ of the Nigerian Navy-an arm of the Nigerian armed forces.
The alarm, raised by a comedian/activist colleague, Debo Adebayo (Mr. Macaroni), raised the apprehension that another voice of the emancipation from police brutality movement was kidnapped in a typical way to silence the artist. Yet again, the world feared that Cute Abiola a known figure would be a victim of Military-Police brutality.
On the 17th day of November 2021, facts emerged on the whereabouts of the artist with a public statement from the spokesperson for the Nigerian Navy, Mr Dahun, confidently debunking the rumor and rather stating that the comedian Cute Abiola who doubles as a Naval officer -OSCOMP Abdul Gafar of the Nigerian Navy was in detention after violating the armed forces social media policy- Posting a video of himself in official uniform, which is a misconduct and indiscipline from which he has now been released not without a light punishment of one month extra duty.
The fact of incidence of Cute Abiola’s saga which is now off the trends on Internet provokes interference into the fundamental quest for legality and efficacy of the individual rights of artistic freedom in face of militating laws and policies in Nigeria. What then is the dividing line between right of artistic freedom and laws militating against the freedom, more specifically the Armed Forces Social Media Code of Ethics?
The ultimate consideration here is to examine the current position of the law on the relationship between artistic freedom with and against a policy or law like the Armed Forces Social Media Code of Ethics especially as it affects an individual/artist/officer who is subject to the laws of the Armed Forces. The clear irony here is how can the artistic freedom be enjoyed even by a person belonging to an institution long used to ‘suppress’ rights and freedom.
The crux of artistic freedom is the right to artistic expression. The right to freedom of artistic expression has its foundation in article 27 of the Universal Declaration of human rights which concerns the right of everyone to fully participate in the cultural life of the community, to enjoy the arts and to enjoy protection of moral and material interests in any literary or artistic production of which he is the author.
There are a number of international and regional mechanisms protecting artistic freedom as both a civil and political rights (freedom of expression) and as a cultural right (right to enjoy the art). More simply, creating content on social media or making media and entertainment productions are acts of creativity for which an author or artist may enjoy artistic freedom. Would Cute Abiola then be considered as an author capable of enjoying artistic freedom -YES! Save that the artistic freedom right is not yet a pronounced right in Nigeria and in fact one with identifiable threats like rigid censorship, rigid governmental policies to gag freedom of expression, contrary social and governmental policies.
Worthy of note is that the mechanism by which artistic freedom is relatively active in Nigeria is the Constitution of the Federal Republic of Nigeria (as amended) and importantly, artistic freedom is seemingly affixed under Section 39 of the Constitution on the right to freedom of expression. (This is not to say there are no other instruments such as the ICESCR, ICCPR providing for artistic freedom ratified in Nigeria, but the efficiency of those instruments are in doubt).
Again, it is without doubt that Cute Abiola like any other Nigerian citizen enjoys the constitutional freedom of expression and by implication artistic freedom, allowing him to showcase creativity by videos and content creation which he is rather known for. Should he then be gagged and punished for contents or videos that he produces and makes available on his social media platforms? What restriction exists against enjoying his artistic freedom? An attempt for an answer would lead to the line.
The Thin Line
It would be unfair to reach a conclusion in respect of the foregoing without mentioning again that OSCOMP Abdulgafar Ahmed (Cute Abiola) joined the Nigerian Navy in 2018 and is still an active member of the Armed Forces. Again the crux of the debate is not just that Cute Abiola was arrested by the Nigerian Navy for posting a video of himself in his official Naval uniform but the question whether his freedom of artistic expression is deprived by virtue of being a member of the Nigerian Navy.
The following facts of law are relevant at this point:
- The Nigerian Navy is an arm of the Armed Forces, a creation of the Armed Forces Act (principal military law in Nigeria).
- Members of the Armed Forces are subject to laws, instructions, orders and such other regulations emanating from the appropriate authority.
- There is a subsidiary law known as “Armed Forces Social Media Code of Ethics” promulgated in 2018. The cardinal provision of the Code is that military personnel are prohibited from posting photos or videos of themselves in uniform while engaging in personal or official activities. Military personnel are also not allowed to make comments or share military decisions and operations on social media. (The Code is obtainable by application to the Director of Defense Information).
Does it imply that military officers are prohibited from entertainment?
No! There is no law expressly prohibiting a military personnel from taking part in the entertainment space – and as a matter of fact, oftentimes, even the military organize social and entertaining events for their personnel, thereby breeding ‘creativity-in-khaki’. Succinctly, even the military recognizes creativity.
However, officers are subject to these laws (Military laws and codes) and may be punished as adequate. Cute Abiola being an officer of the Nigerian Navy is subject to these laws. It may be baffling that plethora of such military videos abound on the internet space of foreign countries. It is noteworthy that the Code was passed in 2018 following incessant breach of Intel to terrorists by acts of the officers on social media, hence a need to pass a policy to restrain acts of military personnel and their family and friends online.
Undoubtedly, Cute Abiola enjoys artistic freedom from the provision of Section 39 of the Constitution regardless of whether he is or is not a military officer, as it is trite that the provisions of the Constitution supersede any other law in Nigeria.
Although, the constitutionality of the Armed Forces Social Media Code of Ethics is doubtable and apparently offends the spirit of Section 39 of the Constitution. However, one must take note irrespective of the constitutionality of the policy that artistic freedom or freedom of expression as a fundamental right constitutionally guaranteed is in itself not an ultimate right. Section 45(1)(a) of the Constitution provides that the right may be restricted or derogated from by any law that is reasonably justifiable in the interest of defence, public safety, order, morality and health – this is the dividing line. Of course, the Armed Forces Social Media Code of Ethics as a law in the interest of public defence.
Artistic freedom is a right enjoyable in Nigeria by everyone and anyone but not an ultimate right and the existence of a justifiable law will validly restrict the right of artist freedom. The challenge rather is that, in Nigeria, unlike other jurisdictions, artistic freedom is not a pronounced law or so distinct in entertainment law. There is a need for lawmakers to up efforts in creating a distinct entertainment legal framework for the entertainment industry. This would herald distinct rights and duties and of course, a better appreciation of the right of artistic freedom within different situations.
Samuel Olufowose, (Inte-tainment Law Club)